Monish N.M. (Minor) v. T.L.Devassy, Shaju, Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 09TH DAY OF JANUARY 2020 / 19TH POUSHA, 1941** ## **MACA.No.2440 OF 2010** **AGAINST THE AWARD IN O.P.(MV) NO.2475/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **MONISH.N.M.(MINOR), NEDUMPADOM HOUSE, VELLANIKKARA.P.O., THRISSUR DISTRICT, (MINOR APPELLANT REPRESENTED BY GUARDIAN, FATHER MOHANAN, S/O. MADHAVAN, NEDUMPADOM HOUSE, VELANIKKARA.P.O., THRISSUR DISTRICT)** **BY ADV. SRI.T.C.SURESH MENON** ## **RESPONDENTS/RESPONDENTS:** **1 T.L.DEVASSY, THEKKEKARA HOUSE, CHITTILAPPILLY.P.O., THRISSUR DISTRICT-680 551. 2 SHAJU, S/O.JOSEPH, VADAKKUMCHERY HOUSE, J.P.NAGAR, NADATHARA P.O., THRISSUR DISTRICT-680 751. 3 THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, MAHESWARI BUILDINGS, M.G.ROAD P.O., THRISSUR-680 001.** **R3 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2440 OF 2010** -2- ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.2475 of 2004 on the file of the Motor Accidents Claims Tribunal, Thrissur, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 16.06.2004, while he was travelling in a bus bearing registration No.KL-08/C-3060 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, due to sudden swerving of the vehicle by the 2[nd] respondent driver, the head of the appellant hit on an electric post causing serious injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,01,500/- under various heads, which was limited to 3,50,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent insurer **MACA.No.2440 OF 2010** -3- filed written statement admitting the insurance coverage of the bus involved in the accident; however, denying negligence alleged against the 2[nd] respondent driver. The insurer contended that the accident occurred due to the negligence on the part of the appellant himself. The insurer contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A10 series were marked on the side of the appellant/claimant and doctor who issued Ext.A9 disability certified was examined as PW1. On the side of the respondents, Ext.B1 copy of insurance policy was marked. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the bus by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.62,000/-, together with interest at the rate of 8% per annum from 01.10.2004 till realisation, with proportionate cost and the 3[rd] respondent insurer was directed to satisfy the award. **MACA.No.2440 OF 2010** -4- 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. 7. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of the compensation awarded by the Tribunal under various heads. 8. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the **MACA.No.2440 OF 2010** -5- compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. 9. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No|Head of claim|Amount<br>claimed<br>(Rs.)|Amount<br>awarded<br>(Rs.)|Basis vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earning (Total)|||| |2|Loss of earning (partial)|||| |3|Medical and|40,000|24,659|| **MACA.No.2440 OF 2010** -6- ||Miscellaneous expenses|||| |---|---|---|---|---| |4|Future treatment|20,000||| |5|Bystander expenses|5,000|3,000|| |6|Transportation expenses|5,000|1,000|| |7|Extra nourishment|3,000|2,000|| |8|Damage to clothing etc.|500|500|| |9|Pain and suffering|30,000|15,000|| |10|Disability<br>Loss of earning power<br>Loss of amenities<br>Discomfort|25,000<br>30,000<br>20,000|15,750|15,000 x 7% x 15| ||**Total**<br>**Limited to**|**4,01,500**<br>**3,50,000**|61,909|| 11. The accident occurred on 16.06.2004. At the time of accident, the appellant was a minor, aged 13 years. The document marked as Ext.A5 is the accident register cum wound certificate; Ext.A6 is the discharge summary; and Ext.A7 is the CT scan report. As per medical records, in the accident, the appellant sustained right parietal compound depressed fracture, diffuse severe head injury and subarachnoid bleed. The depressed fracture was elevated and wound debridement was done. He had undergone inpatient treatment at Jubilee Mission Hospital from 16.06.2004 till 19.07.2004. At the time of discharge, he was walking with support. In Ext.A8, the teacher in charge of V.V.S. High School, Mannuthy has certified that the ability of the appellant to learn **MACA.No.2440 OF 2010** -7- has diminished due to his memory impairment following the injuries sustained in the accident. In Ext.A8, the marks obtained by the appellant in Standard VI and VII are shown. The Tribunal noticed that the teacher has omitted to state the marks obtained by the appellant prior to the accident. Therefore, the Tribunal found that there is no reliable materials to assess the loss of ability of the appellant to learn, on account of the injuries sustained in the accident. Ext.A10 series of medical bills are for a sum of Rs.24,659/-. 12. The document marked as Ext.A9 is the disability certificate issued by PW1, who is an Assistant Professor of Neurosurgery, Medical College Hospital, Thrissur in which the permanent disability of the appellant is assessed as 18% due to mild impairment of memory, impaired attention span, impaired comprehension of complex verbal and written commands, hypertonia and decreased dexterity of left hand with inco-ordination, hyperflexia on left upper limb and blunting of sensation in left leg. On the ground that PW1 has denied the chances of recovery of the appellant totally, the Tribunal accepted the percentage of disability only as 7%, for the purpose of assessing compensation. Having considered the **MACA.No.2440 OF 2010** -8- nature of injuries sustained and the disabilities noted in Ext.A8 disability certificate, this Court deem it appropriate to take the percentage of permanent disability of the appellant as 12%, for the purpose of assessing compensation under various heads. 13. In **Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [(2014) 14 SCC 396]** , a decision relied on by the learned counsel for the appellant, the Apex Court laid down the principles regarding payment of compensation for injuries sustained by children, resulting permanent disability. In the said decision, the Apex Court held that in the case of children suffering disability on account of motor accident, the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick. Paragraph 12 of the said decision reads thus; **MACA.No.2440 OF 2010** -9- “12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability up to 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalisation for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows:- |Head|Compensation<br>amount| |---|---| |Pain and suffering already undergone and<br>to be suffered in future, mental and<br>physical shock, hardship, inconvenience<br>and discomforts and loss of amenities in<br>life on account of permanent disability.|Rs.3,00,000/-| |Discomfort, inconvenience and loss of<br>earnings to the parents during the period<br>of hospitalisation.|Rs.25,000/-| |Medical and incidental expenses during the<br>period of hospitalisation for 58 days.|Rs.25,000/-| |Future medical expenses for correction of<br>the malunion of fracture and incidental<br>expenses for such treatment.|Rs.25,000/-| |**TOTAL:-**|**Rs.3,75,000/-**| **MACA.No.2440 OF 2010** -10- 14. Going by the law laid down by the Apex Court in **Master Mallikarjun's case (supra)** , for permanent disability above 10% and up to 30% to the whole body, the compensation under the head _pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomforts and loss of amenities in life on account of permanent disability_ shall be Rs.3,00,000/-. In the instant case, the permanent disability of the appellant on account of the injuries sustained in the accident is taken as 12%. Therefore, the appellant is entitled for a sum of **Rs.3,00,000/-** as compensation under this head. 15. In **Mallikarjun's case** , the injured had undergone inpatient treatment for a period of 58 days. Therefore, under the head _discomfort, inconvenience and loss of earnings to the parents during the period of hospitalisation,_ the Apex Court awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone inpatient treatment for a period of 27 days, a sum of **Rs.12,500/-** can be granted as compensation under this head. 16. In **Mallikarjun's case** , under the head _medical and_ **MACA.No.2440 OF 2010** -11- _incidental expenses during the period of hospitalisation_ , the Apex Court awarded a sum of Rs.25,000/-. In the instant case, Ext.A10 series of medical bills are for a sum of Rs.24,659/-. Therefore, towards medical and incidental expenses, including transportation to hospital, the appellant is granted a sum of **Rs.37,159/-** (12,500 + 24,659). 17. In **Mallikarjun's case** , under the head _future medical expenses for correction of the malunion of fracture and incidental expenses for such treatment_ , the Apex Court awarded a sum of Rs.25,000/-. In the instant case, the appellant suffers mild impairment of memory, etc. Therefore, the appellant is entitled for an amount of **Rs.20,000/-** under this head. 18. In the result, the total compensation in O.P.(MV) No.2475 of 2004 is re-fixed as Rs.3,69,659/- (3,00,000 + 12,500 + 37,159 + 20,000) in this appeal. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.3,07,750/-** (Rupees three lakh seven thousand seven hundred and fifty only) [3,69,659 - 61,909] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. The 3[rd] **MACA.No.2440 OF 2010** -12- respondent/insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. Payment of additional compensation granted in this appeal shall be made to the appellant/claimant as per the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant/claimant shall furnish his bank account details before the Tribunal within one month, with copy to the learned Standing Counsel for the insurer. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr